Raffel v. United States

Decision Date01 June 1926
Docket NumberNo. 307,307
PartiesRAFFEL v. UNITED STATES
CourtU.S. Supreme Court

Mr. Solicitor General Mitchell and Mr. Alfred A. Wheat, both of Washington, D. C., for the United States.

Mr. Justice STONE delivered the opinion of the Court.

Raffel, with another, was indicted and twice tried for conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.). Upon the first trial, a prohibition agent testified that after the search of a drinking place, Raffel admitted that the place belonged to him. On that trial Rafel did not offer himself as a witness, and the jury failed to reach a verdict. Upon the second trial the prohibition agent gave similar testimony. Raffel took the stand and denied making any such statement. After admitting that he was present at the former trial, and that the same prosecuting witness had then given the same testimony, Raffel was asked questions by the court which required him to disclose that he had not testified at the first trial, and to explain why he had not done so. The questions and answers are printed in the margin.1 The second trial resulted in a conviction. On writ of error, the Circuit Court of Appeals for the Sixth Circuit certified to this court (Judicial Code, § 239 (Comp. St. § 1216)) a question necessary to the disposition of the case as follows:

'Was it error to require the defendant, Raffel, offering himself as a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial?'

To this, and to the similar questions which involve, not a previous trial, but a previous preliminary examination, or a hearing upon habeas corpus or application for bail, the authorities have given conflicting answers. Cases which support the government's position are Commonwealth v. Smith, 163 Mass. 411, 40 N. E. 189, and People v. Prevost, 219 Mich. 233, 189 N. W. 92. See, also, Taylor v. Commonwealth, 34 S. W. 227, 17 Ky. Law Rep. 1214; Sanders v. State, 52 Tex. Cr. R. 156, 105 S. W. 803. Compare Garrett v. Transit Co., 219 Mo. 65, 90-95, 118 S. W. 68, 16 Ann. Cas. 678.

Other cases take an opposite view, with perhaps less searching examination of the principles involved. See Parrott v. Commonwealth, 47 S. W. 452, 20 Ky. Law Rep. 761; Newman v. Commonwealth, 88 S. W. 1089, 28 Ky. Law Rep. 81; Smith v. State, 90 Miss. 111, 43 So. 465, 122 Am. St. Rep. 313; Parrott v. State, 125 Tenn. 1, 139 S. W. 1056, 35 L. R. A. (N. S.) 1073, Ann. Cas. 1913C, 239; Wilson v. State, 54 Tex. Cr. R. 505, 113 S. W. 529. And see People v. Prevost, supra, 246 et seq. (189 N. W. 92). Compare Masterson v. Transit Co., 204 Mo. 507, 103 S. W. 48; Garrett v. Transit Co., supra.

The Fifth Amendment provides that a person may not 'be compelled in any criminal case to be a witness against himself' and by the Act of March 16, 1878, c. 37, 20 Stat. 30 (Comp. St. § 1465), it is enacted:

'That in the trial of all indictments * * * against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts * * * the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.'

The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. Reagan v. United States, 157 U. S. 301, 15 S. Ct. 610, 39 L. Ed. 709; Fitzpatrick v. United States, 178 U. S. 304, 20 S. Ct. 944, 44 L. Ed. 1078; Powers v. United States, 223 U. S. 303, 32 S. Ct. 281, 56 L. Ed. 448; Caminetti v. United States, 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Gordon v. United States, 254 F. 53, 165 C. C. A. 463; Austin v. United States (C. C. A.) 4 F.(2) 774. When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue. Reagan v. United States, supra, 305 (15 S. Ct. 610); Fitzpatrick v. United States, supra; Tucker v. United States (C. C. A.) 5 F. (2d) 818. He may be examined for the purpose of impeaching his credibility. Reagan v. United States, supra, 305 (15 S. Ct. 610); Fitzpatrick v. United States, supra, 316 (20 S. Ct. 944). His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge may be the basis of adverse inference, and the jury may be so instructed. Caminetti v. United States, supra. His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.

If, therefore, the question asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination they were proper questions, unless there is some reason of policy in the law of evidence which requires their exclusion.

We may concede, without deciding, that, if the defendant had not taken the stand on the second trial, evidence that he had claimed the same immunity on the first trial would be probative of no fact in issue, and would be inadmissible. See Maloney v. State, 91 Ark. 485, 491, 121 S. W. 728, 134 Am. St. Rep. 83, 18 Ann. Cas. 480; Loewenherz v. Merchants' Bank, 144 Ga. 556, 87 S. E. 778, Ann. Cas. 1917E, 877; Bunckley v. State, 77 Miss. 540, 27 So. 638; People v. Willett, 92 N. Y. 29; but see People v. Prevost, supra.

Making this concession, and laying aside for the moment any question whether the defendant, notwithstanding his offering himself as a witness, retained some vestige of his immunity, we do not think the questions asked of him were irrelevant or incompetent; for, if the cross-examination had revealed that the real reason for the defendant's failure to contradict the government's testimony on the first trial was a lack of faith in the truth or probability of his own story, his answers would have a bearing on his credibility and on the truth of his own testimony in chief.

It is elementary that a witness, who upon direct examination denies making statements relevant to the issue, may be cross-examined with respect to conduct on his part inconsistent with this denial. The value of such testimony, as is always the case with cross-examination, must depend upon the nature of the answers elicited, and their weight is for the jury. But we cannot say that such questions are improper cross-examination, although the trial judge might appropriately instruct the jury that the failure of the defeendant to take the stand in his own behalf is not in itself to be taken as an admission of the truth of the...

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